BP 22: [Management Of Bouncing Checks Cases]

DCA NIMFA CUESTA VILCHES

2 Kinds Of Violations
[A] Section 1, Par. 1, B.P. 22- Issuance Of A Check / On Account Or For Value / The Drawer Knows That At The Time Of Issue- No Sufficient Funds Or Credit With Drawee Bank / Check Is

Dishonored For Insufficiency Of Funds Or Credit Or The Check Would Have Been Dishonored For The Same Reason Had The Drawer Without Valid Reason Stopped Payment / The Check Presented Within A Period Of 90 Days

From Its Date [Marigomen v. People, 459 SCRA 169, May 26, 2005] [B] Section 1, Par. 2, B.P. 22 Drawer Of The Check Has Sufficient Funds Or Credit With The Drawee Bank / Issues Check / Fails To Keep

Sufficient Funds, Credit With Drawee Bank To Cover The Full Amount Causing Dishonor / Check Presented Within 90 Days From The Date Appearing / But The 90Day Period Is Not An Element Of The Offense, Neither It Discharges The Drawer To Maintain

Sufficient Funds Within A Reasonable Time [6 Months According To Banking Practice] Thereafter, The Check Becomes Stale And The Drawer Is Discharged From Liability To The Extent Of The Loss Caused By The Delay

[Arceo, Jr. v. People, G.R. No. 142641, July 17, 2006] / Prima Facie Evidence Of A Bounced Check: An Unpaid And Dishonored Check With Non-Payment Stamped On The Check [Chang v. IAC, 146 SCRA 464]

While Gravamen Of Offense Is Issuance Of A Worthless Check Dishonored Upon Presentment, Do Not Apply The Law Mechanically As When Case Filed After 2 Years And Payee Collected More Than Value Of Check [Vergara v. People, G.R. No. 160328, February 4, 2005]

B.P 22 Is Devised To Safeguard . Interest Of The Banking System, Legitimate Public Checking Account User / It Is Not Designed For Those Who Seek To Enrich Themselves Through Manipulation / PCIB Already Exacted Its Proverbial Pound By Keeping

Accuseds 4 Buses [Tan v. PCIB, G.R. No. 152666, April 23, 2008] / B.P 22 Is . Not The Same As Estafa By Issuing A Post-Dated Or A Check Without Funds To Pay An Obligation Under Art. 315, Par. 2 (d), RPC / But Drawer Of Check Maybe Held Liable Under Two Laws At Same Time

Hence, Where A Drawer Through Deceit Did Not Merely Induce A Person To Give Money For Investment Making The Latter Believe That The Drawer Is Rich But Also Because Simultaneous To Delivery Of The Money

By The Person, The Drawer Issued An Unfunded Check With 30% Profit That Was Subsequently Dishonored- Drawer Is Liable Both Under B.P. 22 And Art. 315, Par. (d) Of The RPC [Chang v. IAC, 146 SCRA 464]

Elements Of Estafa: [1] Post-Dating Or Issuing A Check In Payment Of An Obligation [And The Issuance Is Prior To Or Simultaneous With Act Of Fraud]; [2] Lack Or Insufficiency Of Funds; [3] Damage To Payee

In Estafa, Check Issued As Inducement For Surrender By A Party Deceived Of The Money Or Property, Not In Payment Of Pre-Existing Obligation [Check Is Immediate Consideration For Reciprocal Receipt Of Benefits, Check Issued Concurrently With And In

Exchange Of A Material Gain Drawer Derives No Contemporary Gain In Return As The Obligation Sought To Be Settled Already Incurred And Is Outstanding When Check Issued] [Castro v. Hon. Mendoza, G.R. No. 50173, September 21, 1993] /

Failure To Make Good Within 3 Days From Notice Of Dishonor Is Evidence Of Deceit Constituting False Pretenses Or Fraudulent Act / In B.P 22, The Issuance . Of Check Which Payment Is Refused Due To The Insufficiency Of Funds Is

Prima Facie Evidence Of Knowledge Of The Insufficiency Of Funds When Check Is Presented Within 90 Days From The Date Of Check Except If The Drawer Pays Holder Amount Of Check Within 5 Banking Days From The Notice Of Dishonor

The Bank Representative Need Not Be Presented As Witness As The Complainant Can Attest To Following Facts: [1] Deposited The Check; [2] Subsequently Received From The Bank The Check Returned Or Paid With

A Notation DAIF Stamped On The Dorsal Side; And [3] Failure To Pay The Value Of The Check Or Make Arrangement Within Five [5] Banking Days From The Notice Of Dishonor Of The Check

Statistics Of B.P. 22 Cases Pending Before MeTCs, MTCCs, MTCs, MCTCs, [CAMISOCA, March 1, 2007]

2004: 74,025 2005: 57,921

2009: 70,303!
Why?: Because B.P 22 . Violations Are Mala Prohibita Offenses What Is Penalized Is Mere Issuance Of An Unfunded Check And Then Circulating It

Effective Management Of B.P. 22 Cases: [1] Application Of SC Circular No. 57-97, [September 16, 1997] And No. 70-97 [21 October 1997] On Payment Of Docket Fees Failure To Pay Within 10 Days, Case Folder Is Archived, After 2

Months, Records Shall Be Disposed; [2] Application Of Rule On Summary Procedure [A.M. No. 001101- SC, April 15, 2003] The Information Shall Be Accompanied By Affidavits Of The Complainant, Witnesses In Number Of Copies As

There Are Accused Plus 2 Copies For The Court Files, Otherwise, The Case Is Dismissed / Upon Consideration Of Information And Affidavits Of The Parties, No Cause Or Ground To Hold Accused For Trial, Dismiss Case /

However, Court Shall Not Order The Arrest Of Accused / No Bail, Except For Failure To Appear When Required / Accused May Put Up Bail Or Recognizance By Person Acceptable To The Court

Prohibited Pleadings: Motions For Reconsideration, For Extension Of Time, Dilatory Motion For Postponement, Intervention, Etc. / Judgment Shall Be Made Not Later Than 30 Days After Termination Of Trial

[3] Application Of The Speedy Trial Act And The Revised Rules Of Criminal Procedure Accused Arraigned Within 10 Days From Filing Or Raffle Of Case, Otherwise Or If Not Brought To Trial Within Time Limit, Information Shall Be Dismissed

[4] Application Of The Enhanced PTC Rule [A.M. No. 03-1-09-SC, Effective August 16, 2004 ]: Before Arraignment, The Court Issues Order For Public Prosecutor To Submit Records Of Preliminary Investigation To Branch COC For Attachment To

The Records, Preliminary

Conference [Pre-Con] Before Branch COC For Settlement Of Civil Aspect / If No Plea Bargaining, Adopt The Minutes Of Pre Con As Part Of PTC / Issue PTC Order 10 Days From Termination / Controls Course Of Action At Trial

One-Day Examination Of Witness Rule: A Witness Has To Be Fully Examined In One Day / On The Last Hearing, A Formal Offer Of Evidence Is Made / However, The Judge Has Discretion To Allow The Offer Of Evidence In Writing

Most Important Witness Rule: Determine The Most Important Witness And Limit The Number Of Witnesses / Facts To Be Proven By Each Witnesses And Fix The Approximate Number Of Hours Per Witness

[5] Apply Second Revised Guidelines On Mediation [5 September 2001] Civil Aspect Of B.P. 22 Is Referable To Mediation / Lawyers May Attend / For Successful Settlement, Otherwise Case Returned For Further Judicial Proceedings

For B.P 22 Cases The . Civil Aspect Of Which Is Settled During Mediation Consisting In The Payment Of The Amount Of The Check Over A Period Of Time- Provisional Dismissal Or Criminal Aspect In The Meantime, May Be Archived

[6] SC Circular No. 57-97 Criminal Action Includes Civil Action, No Reservation To File Civil Action, Pay Full Filing Fees Based On Amount Of Checks, Considered Actual Damages / Separately Filed, No Trial Yet, Consolidate Cases

[7] If Creditors Principal Purpose In Filing B.P 22 Case Is To Be Able To Collect Debt Not So Much That Debtor Be Imprisoned For Bad Check, 3 Options: [A] Creditor Files Collection Case Against Debtor; [B] Foreclose On Mortgage Property And If

Debt Not Fully Satisfied, Creditor May Sue Debtor For Deficiency Judgment [C] Sue Debtor For B.P 22 If Check Securing Obligation Bounces, Collection Suit Deemed Included, No Reservation Is Needed [Guevarra v. First E-Bank Corporation, G.R. No. 169889, September 29, 2009]

[8] When The Amount Of Check Is P100T Or Below, It Maybe Filed As A Small Claim Action To Collect The Amount Of The Check If A Criminal Case For B.P. 22 Has Not Yet Been Commenced With The Office Of The Prosecutor [A.M. No. 08-8-7-SC, October 1, 2008, As Amended In 2010]

Trial Of B.P 22 Cases Under RSP [Retroactive] Affidavits Submitted By Parties Are Considered Direct Testimonies Of Witnesses Who Executed Them And Who May Be Subject To CrossExamination, Re-direct Or Re-Cross Examination

Defenses In B.P 22: .

[1] Prescription Lapse Of 4 Years After The Expiration Of The Five [5] Banking Days From The Notice Of Dishonor To Make Good The Check Which Extinguishes The Criminal Liability And Penalty Of The Offense

[2] Duplicity Of Offense As When There Is Also Information For Estafa That Embodies All The Elements Of Any Of The Offenses Punishable Under B.P 22 / Accused . Is Erroneously Charged With Estafa And The Information Has All The Elements Of B.P 22 .

[3] Stop Payment Of The Checks For The Reason That Condominium Unit Bought On Installment Basis Has Not Been Finished / Such Is A Statutory Right To Suspend Payment And Hence, The Dishonor Was For A Valid Cause [Sycip, Jr. v. CA, 328 SCRA 447]

[4] Dishonor With A Mere Stamp In The Check STOP PAYMENT Because The Bank Is Directed As Well To State In The Notice Of Dishonor That There Was Either: No Sufficient Funds, Or Check Has Stamp Account Closed

[5] Knowledge On The Part Of The Payee As To Insufficiency Of Funds Unique To The Cases Of Magno v. CA, [212 SCRA471] And Idos v. CA [296 SCRA 194], And Also Due To Lack Of Personal Notices Of Dishonor To The Drawers Of Checks

[6] No Receipt Of Notice Of Dishonor, Non-Payment, Or No Proof Of Receipt Because The Presumption Of Prima Facie Evidence Under Section 2 Of B.P 22 . Does Not Arise- There Being No Way To Reckon The Crucial 5Day Period [Tan v. People, 500 SCRA 441]

[7] Failure Of Prosecution To Prove Receipt By Accused Of Written Notice Of Dishonor And Accused Was Given At Least Five [5] Banking Days To Settle The Account That Constitutes Sufficient Ground For Acquittal [Moster v. People, G.R. No. 167461, February 19, 2008]

[8] Notice Of Dishonor By Registered Mail Proven By Registry Receipt Cards Duly Authenticated And Signature Of Person Receiving Identified- If Not, Acquittal On Reasonable Doubt, But Civil Liability Is Affirmed [Suarez v. People, A.H. Shoppers Mart, Inc., G.R. No. 172573, June 19, 2008]

The Exceptions To The Requirement Of Notice Are Cases Of Rigor v. People [442 SCRA 450] And Yulo v. People [452 SCRA 705] Where Dishonored Checks Were Acknowledged, Not Impugned And Notice Was Waived For Refusal To Give The Address

[9] PostDated Check Presented For Payment Before Due Date, Demand Letter Sent And Received By The Drawer Before The Maturity Of The Check As Notice Of Dishonor Is For Check Due And Demandable [Dico v. CA, 452 SCA 441]

[10] Exercise Of Statutory Right Under P.D. 957 To Suspend Instalment Payments; [11] Stop Payment Of Check For A Valid Cause; [12] Full Payment Of Amount Appearing In Check Within 5

Banking Days From The Notice Of Dishonor; [13] Forgery On The Check; [14] Less Than All Of The Required Signatories To The Check Signed The Check; And [15] Double Jeopardy

Non-Defenses In B.P. 22 [1] Lack, Absence Of Or Illegal Consideration As The Gravamen Of B.P 22 Is The Issuance Of A Bad Check / Purpose, Terms, Conditions And Any Agreement Surrounding Is Irrelevant [Josef v. People, G.R. No. 4755417, November 18, 2005]

[2] Denial That A Loan Transaction Was Entered Into For Which Check Issued That Was Dishonored As Denial Is A Self-Serving Negative Defense As Against Testimony Of Credible Witness [Caca v. CA, G.R. No. 116962, July 7, 1997]

[3] Knowledge Of Payee At Issuance Of Check That Drawer Would Not Have Sufficient Funds Upon Presentment Of Check Since Deceit Is Not An Element Of B.P 22 / The Offense Is Malum Prohibitum [Cruz v. CA, G.R. No. 108738, June 17, 1994]

[4] Prejudicial Question As Offense Is Malum Prohibitum And Intent Or Motive Of The Drawer Has No Bearing [Cruz v. CA] / Civil Case For Accounting Or Cancellation Of The Check Due To Payment That Is Filed At The RTC Is Not A Ground To Suspend

Failed To Certify Earlier B.P 22 . Cases Filed / B.P 22, Collection . Of Sum Of Money Have The Same Issue- Recovery Of The Check, Subsequent Sum Of Money Case Constitutes Forum Shopping [Silangan v. Hon. Demetria, G.R. No. 166719, March 12, 2007]

Whether Or Not The Interest Rate [Eq. 5%] Imposed By Petitioners Covered By A Check Is Eventually Declared Void For Being Contra Bonos Mores Will Not Affect The Outcome Of BP Blg. 22 / What Is Ultimately Penalized Is Mere Issuance [Yap v. Hon. Cabales, G.R. No. 159186, June 5, 2009]

[5] Petition For Insolvency Or Order Declaring A Corporation In Suspension Of Payments By Securities & Exchange Commission [SEC] Since Suspension Of Payments Order Involves Only The Civil Obligations Of The

Company Not Affecting B.P . 22 / If At All, After Trial Drawer Guilty, Penalty Imposed But The Civil Liability Will Depend On Outcome Of Proceedings In Suspension Of Payment [Gidwani v. Hon. Nimfa Cuesta-Vilches, C.A. G.R. S.P 478811, June 17, 1998] .

[6] A Post-Dated, Accommodation [Does Not Cover Actual Account Or Value] Guaranty, Deposit, Foreign Check [Provided Drawn, Issued In Phl.] Manager Or Cashier Check Is Not Covered As Primary Obligation Of The Issuing Bank Accepted In Advance And Is Good As Cash

[7] As Far As Criminal Aspect Of B.P 22 Is Concerned, The Provisions Of Sec. 6 (c) Of P.D. No. 902-A [Corporate Rehabilitation] Should Not Interfere With Prosecution Of B.P. Blg. 22, Even If Restitution, Reparation Or Indemnification Is Ordered [Rosario v. Co., G.R. No. 133608, August 26, 2008]

Penalties, Fine, And Subsidiary Imprisonment Under B.P 22 .

[1] Imprisonment Of Not Less Than 30 Days But Not More Than 1 Year Regardless Of Amount [2] A Fine Of Not Less Than But Not More Than

Double The Amount Of The Check But Not To Exceed Two Hundred Thousand Pesos [P200,000]; [3] Both Imprisonment And Fine [4] Subsidiary Imprisonment If Unable To Pay Fine [Jao Yu v. People, 438 SCRA 432 / SC Circular 13-2001] / An RTC Judge Acquitted An

An Accused, On Appeal To The RTC From MTCC In B.P. 22 Cases On Grounds That The Penalty Imposed Is Harsh And Oppressive; Based On Codal Provisions; Common Sense Fairness, And Equity / Judge Was Imposed A Fine Of P20,000 [RTC Branch 3, Tagbilaran, Bohol, March 28, 2008]

Other Liabilities Under B.P. 22 / SC Circular No. 57-97 [1997] Civil Liability Is Imposed Upon Conviction For The Payee To Recover Even Face Value Of The Check / Even If Acquitted As A Consequence Of The

Injury Caused / Legal Interest As Forbearance Of Credit / Damages So Long As Docket Fees Paid, Even Not Alleged But Proven At Trial Merely Constituting First Lien On Judgment Of Conviction / Costs As Expenses Of Party In Filing The Case

SC Administrative Circular 12- 2000, 21 November 2000: Rule Of Preference

Where Circumstances Of Both Offenses And Offender Clearly Indicate Good Faith Or Clear Mistake Of Fact

Without Taint Or Negligence, The Imposition Of A Fine Alone Should Be Considered As The More Appropriate Penalty / SC Administrative Circular No. 13 2001, February 14, 2001: Clarification

A Decision To Impose A Fine

Only Rests Solely On The Discretion Of The Judge / Should An Impris-onment Be The More Appropriate Penalty / SC Admin. Circular 12-2000 Ought Not Be Deemed A Hindrance / Application Of Subsidiary Imprisonment

Guiding Factors
Good Faith / Clear Mistake Of Fact / Check Issued Without Taint Of Negligence / Whether Fine Will Best Serve The Interest Of Justice Or Work Violence On Social Order / Contrary To Imperatives Of Justice

Impose A Fine Only: FirstTime Offenders / Filipino Entrepreneurs Contributing To The National Economy [Vaca v. CA, 298 SCRA 656] / If Fine Would Best Serve The Ends Of Criminal Justice System [Rosa Lim v. People, 134 SCAD 1]

Appeal For Lenity To SC As A Good Man Who Has Suffered Pain, Suffering: Duty Of Courts Is To Apply The Law, Disregard Feeling Of Sympathy / Seek Executive Clemency, Amendment Of The Law [Mejia v. People, G.R. 149937, June 21, 2007]

Probation: The Payment Of The Check Maybe Imposed As A Special Or Discretionary Condition If Accused Does Not Object And After Hearing Set, Otherwise Probation Will Only Be Available To The Rich

Administrative Liabilities [1] Respondent Court Interpreters Issuance Of A Bouncing Check Is Considered Misconduct And A Ground For Disciplinary Action / Suspended From Service For One [1] Month, One [1] Day Without Pay [A.M. No. P-08-2424, Feb. 6, 2008]

[2] Conviction Under B.P . 22 Is Finding Of Guilt Of Offense Involving Moral Turpitude, If Lawyer, May Be Disbarred As Relates, Affects Good Moral Character Of A Person Convicted [People v. Tuanda, 192 SCRA 181]

The Act Of A Lawyer In Issuing A Check Drawn Against Insufficient Funds Constitutes Deceitful Conduct Or Conduct Unbecoming Of An Officer Of The Court / Suspended For 1 Year With Warning / Ordered To Pay Full Amount Of Check [Admin. Case. No. 6383, March 31, 2009]*

Thank You!